Rand Paul Is Satisfied With Eric Holder's Slippery Answer - You Shouldn't Be

Kevin Glass

3/7/2013 5:10:00 PM - Kevin Glass

John Brennan has been confirmed today as Obama's director of the CIA after a dramatic 12-hour filibuster by Sen. Rand Paul on the Senate floor yesterday demanding answers. Sen. Paul's communications team declared victory after Eric Holder sent a letter to Paul today saying that no, President Obama does not claim "the authority to use a weaponized drone to kill an American not engaged in combat on American soil."

This is a more direct answer than Eric Holder gave to Paul earlier this week, in which Holder said "it is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under te Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States," and quoted Pearl Harbor and 9/11 as examples of when the federal government would conceivably resort to military force.

The Obama Administration, however, has been incredibly slippery in how it defines the terms of war in the global war on terror. So while it sounds nice that if an American isn't "engaged in combat," she'll be safe, that still leaves the Obama Administration a lot of wiggle room. And precious little oversight.

The Obama Administration has maintained the authority to use force against "al-Qaida and associated forces outside the area of active hostilities." Translation: the Obama Administration can go after bad guys everywhere. The President also retains the authority to determine who the bad guys are: the 2001 Authorization for Use of Military Force gives the President broad latitude to determine what "nations, organizations, or persons... planned, authorized, committed, or aided" the terrorist attacks of 9/11. The AUMF also allows for the use of force on those who "harbor" such organizations or persons, "in order to prevent any future acts of international terrorism."

As Paul said yesterday on the Senate floor when discussing the killing of Anwar al-Awlaki, the rules of who might "aid" al-Qaida have become increasingly vague in the internet age:

Were I a juror, I would have voted that [al-Awlaki] was committing treason and I wouldn't have had trouble at all with a drone strike on him. But if we're going to take by extension the standard we used in putting him on the list, that he was a sympathizer, an agitator and a pain in the royal you-know-what on the Internet, there's a lot of those people in America, if that's going to be our standard. That's why I would feel a little more comforted if it weren't an accusation by a politician that unleashes Hellfire missiles. I would be a little more comforted and I think we would all sleep a little better in our house at night if we knew before the Hellfire missile comes down, a policeman would come to your door and say, we accuse you of this.

These issues continue to come down to oversight. The Obama Administration reserves the right to determine who the enemy combatants are, where the battlefield is, and whether someone constitutes an "imminent threat." All without oversight or checks and balances.

It's easy to remember the presidency of George W. Bush, when Republicans defended executive branch activities that take place without oversight, as well. Sen. Paul brought this up - and said he would have objected as strenuously to the expansion of executive power under the Bush Administration as he does under the Obama Administration.

This isn't new. The Bush Administration did some of this, too. When the Bush Administration tried to grab power, though on the left and some of us on the right were critical. When they tried to wiretap phones without a warrant, we raised a ruckus. Many on the right and many on the left. There was a loud outcry against President Bush for usurping, going across due process, not allowing due process, not obeying the restraints of warrants. Where is that outcry now?

What may be the necessary legislative step to curtailing some of the expansions of executive power that President Obama has claimed is to reform or repeal the 2001 Authorization for Use of Military Force. "They take that authorization of use of force to mean pretty much anything," Paul said on the floor yesterday. Eric Holder's brief letter today shouldn't have changed anything. If the Obama Administration still claims the authority to unilaterally assert who qualifies as an "enemy combatant" - anywhere in the world, including the borders of America - then Paul's nightmare scenario of an American sitting in a cafe in America being targeted with a drone strike, without trial or oversight, is still a possibility, thanks to the broad interpretation given to the AUMF.

The President can designate such a combatant if he belongs to an entity—a government, say, or a terrorist network like al Qaeda—that has taken up arms against the United States as part of an internationally recognized armed conflict... Such a conflict exists between the U.S. and al Qaeda, so Mr. Holder is right that the U.S. could have targeted (say) U.S. citizen Anwar al-Awlaki had he continued to live in Virginia.

John Brennan has been confirmed as President Obama's CIA director. Senator Rand Paul briefly raised the profile of President Obama's legally and morally questionable drone warfare program yesterday in his marathon filibuster session. Paul got what he said he wanted - a letter from Eric Holder - but the Obama Administration has today backed off its expansive claims of executive power. The Obama Administration claimed the power to label and assassinate enemy combatants yesterday - including Americans in America - and continues to maintain that power today.